Says explosion of smartphone patent litigation is "natural and reasonable."

David Kappos, the head of the United States Patent and Trademark Office, offered a strong defense of software patents in a Tuesday address at the Center for American Progress. Kappos touted several provisions of the America Invents Act (AIA), which he argued would allow the patent office to weed out low-quality software and business method patents.

Addressing those who claim the patent system is broken, Kappos said, "Give it a rest already. Give the AIA a chance to work. Give it a chance to even get started."

Kappos focused on the post-grant review procedure established by the AIA. This procedure allows third parties to challenge the validity of a patent after it has been approved by the patent office. He noted that the courts have tightened the rules for patent eligibility, and said that the new procedures established by the AIA "gives us the opportunity to address patents that would not have issued under current law."

He noted that during a time of growing litigation in the smartphone industry, "innovation continues at an absolutely breakneck pace. In a system like ours in which innovation is happening faster than people can keep up, it cannot be said that the patent system is broken," he said.

Indeed, Kappos suggested that the volume of patent litigation in the smartphone industry was a sign that the patent system was working as intended. "The explosion of litigation we are seeing is a reflection of how the patent system wires us for innovation," Kappos said. "It's natural and reasonable that innovators would seek to protect their breakthroughs using the patent system."

Kappos cited a Patent Office report released earlier this year that supposedly shows that "intellectual property" industries "supported the jobs of 40 million American workers, or 27.7 percent of all US jobs." But as we pointed out at the time the report was released, those figures mostly reflect a ludicrously broad definition of "IP-intensive industry." Any industry that makes use of trademark protection is counted as an "IP" industry, meaning that (as we put it in April) "if you hang sheetrock, bag groceries, or answer phones at a paper mill for a living, you're probably in an 'IP-intensive' industry as far as the Obama administration is concerned."

Incentive or disincentive?

"Our patent system is the envy of the world," Kappos said. In his view, the key question in the patent debate is "do we demand today's innovation on the cheap via a weaker patent system that excludes subject matter, or do we moderate today's consumption with a strong patent system so our children enjoy greater innovations?"

This argument ducks the central question in the software patent debate: do patents, in fact, provide a net incentive for innovation in the software industry? Many entrepreneurs say that just the opposite is true: that the disincentive to innovation created by the threat of patent litigation dwarfs any positive incentive effects created by the ability for a firm to get patents of its own.

Empirical evidence backs this up. For example, in a 2008 book, the researchers James Bessen and Michael Meurer found that for nonchemical patents, the costs of patent litigation began to exceed the benefits of holding patents in the 1990s. Software and business patents were particularly prone to litigation.

More recent research has estimated that litigation by patent trolls costs the economy at least $29 billion per year, and that figure may be as high as $83 billion.

Rather than engage in this empirical debate, or even acknowledge its existence, Kappos acted as though it was self-evident that stronger patents always create a larger incentive for innovation.

"To those commenting on the smartphone patent war with categorical statements that blame the so-called broken system on bad software patents, what I say is: get the facts. The facts don't support your position."

With all due respect, Mr. Kappos, we do have the facts. And they support the position of software patent critics.

Sorry if I don't take the word of the guy *in charge of patents* if patents are helpful or harmful to the future of software.

Software programs are mathematical algorithms, there is an excellent case that they should not be able to be patented. I for once would like US patent leadership to talk about that issue, not tell people to shut up and trust us.

Well, that does it for me. As someone in the tech industry I apparently don't have a clue as to what is going on in the tech industry. Thanks for the clarification. /s

Also, writing code is much like writing a story. It's a means to an end. While plagiarism is inherently wrong, you shouldn't be able to patent broad concepts of software. It would be like Issac Asimov patenting science fiction or Herman Melville owning the rights fishing stories.

I have nothing nice to say. I will not say it. I will go back to writing code. I will forget I ever read anything about this.

I have nothing nice to say. I will say it. I will then go back to writing code. I will not forget the words of David Kappos, former intellectual property law attorney in IBM's Storage Division and Litigation group, IP Law Counsel in IBM's Software Group, assistant general counsel for IBM Asia/Pacific, IBM Corporate Counsel, Board of Directors of the American Intellectual Property Law Association, the Intellectual Property Owners Association, and the International Intellectual Property Society.

This man was appointed clearly with only one thought in mind. It falls to us to make sure that those in power know that we know, and that we won't stand for it.

The biggest problem is that the patent system is systemic in disallowing innovation by smaller players. Imagine you have a new company come out and make a YouTube type service, but better than YouTube. Google will go after them for patent infringement and the litigation will basically stop their service entirely. Then they hire the engineers who were working on it and get all the benefits and no competition.

It's ridiculous that in order to compete in the world of technology you have to be working with an army of lawyers. The patent system was designed to bring about innovation and protect innovation, but not shoot it in the leg when somebody has "similar" technology to you. The patent system is broken, and anybody who sticks up for it really shouldn't be running it. It needs a reformer, not an apologist.

On one point, if they did just introduce legislation to fix some of the worst parts of the system, it is appropriate to wait to see how things work out before re-legislating. Give it a year or two.

On the other point, having a massive pile of billion dollar lawsuits is absolutely NOT a good thing and is proof of something fundamentally wrong. Either an entire industry has been engaging in industrial espionage (unlikely), or the law is needs a major rework.

Not surprised that a washed-up second-rate lawyer is defending his office's policy of only hiring washed-up second-rate lawyers to determine the validity of patents. How about employing some software engineers, or maybe even people capable of exercising a little common sense?

I read this and just sigh. Have it your Mr. Patent Chief. When the major corporations start destroying each other with frivolous patent ligation and crushing any potential competitors because you gave them patents on this that should not be patentable, Then new startups start moving away from the US. We will have a collective "I told you so" waiting.

Okay so that bit extreme on my part, but even so. This guy is not seeing all sides of the problem. He just wants his system to work, but that doesn't mean that it is.

Patents should only be valid for physical mechanisms, not business methods or mathematical algorithms.

This. Can you possibly imagine a world where a mathematical formula can be patented? Imagine trying to do science or theoretical physics where certain algebraic operations are off limits because they are patented. "Well, we've done the research and if we could evaluate this equation, we would have exciting new information on cancer and how to treat it.. but we can't, because we need a license to multiply by the inverse of this fraction, and to perform this f(x), and every use of this function requires a license also."

Sigh. I guess that's the name of the game... I just really have a hard time accepting that those so inept and ignorant of the matters they legislate on are allowed to do so (software/technology patents, science and technology in general).

Nothing so far points out that more patents = more innovation. In fact I believe there are already a few papers out that show the opposite - that the patent system has crippled innovation.

This guy must be thinking that the most innovation comes from the big corporations, because they have the most money to file for bogus patents. But the innovation comes from small companies, and those companies usually get crushed by the old big incumbents when they try to enter the market - with the threat of patent lawsuits.

The biggest problem is that the patent system is systemic in disallowing innovation by smaller players. Imagine you have a new company come out and make a YouTube type service, but better than YouTube. Google will go after them for patent infringement and the litigation will basically stop their service entirely. Then they hire the engineers who were working on it and get all the benefits and no competition.

It's ridiculous that in order to compete in the world of technology you have to be working with an army of lawyers. The patent system was designed to bring about innovation and protect innovation, but not shoot it in the leg when somebody has "similar" technology to you. The patent system is broken, and anybody who sticks up for it really shouldn't be running it. It needs a reformer, not an apologist.

I'm genuinely curious here; is there any evidence that the kind of scenario you paint actually occurs? Show us these brilliant software innovations laying fallow due to fears or threats of legal action based on patents.

I'm NOT saying that the current system is perfect; far from it. But these kinds of empty "the sky is falling" arguments leave me wanting.

So....by this guy's logic wars are also a logical resolution system to disputes over who owns access to a resource. Sure it'll benefit the govt contractors (just like patent wars benefit the lawyers), but when companies SAY they are "going nuclear" on each other over software patents, sticking one's head into the sand isn't exactly the brightest idea.

It's a sad day when a patent chief expects or even encourages litigation. Somehow, his priorities are wacked. I agree with some of the others. If you can't put it in a box and take it to the examiner's desk and turn it on while he watches, you can't patent it.

"Our patent system is the envy of the world," Kappos said. In his view, the key question in the patent debate is "do we demand today's innovation on the cheap via a weaker patent system that excludes subject matter, or do we moderate today's consumption with a strong patent system so our children enjoy greater innovations?"

That sounds close enough to a "think of the children" argument, which means he has no real argument.

I guess nobody is surprised by bureaucrats defending their bureacacy. The issues with software patents are varied. But bundling intellectual property like Apple's "design patents" together with software technology patents is very poor quality law. The legal issues surrounding Apple's "design patents" are relatively reasonable and the litigation surrounding them is not surprising.The software technology patents are another story. At least Microsoft and IBM managed to find a workable way for dealing with them without any history of litigation (aside from their antitrust suits). There is not any obvious reason why these practices have become unsettled. Nor is it clear that patent law provides any positive value to the software industry. In most cases the intellectual property involved in the patents is not any different than the intellectual property involved in designing and developing the majority of the software that is not patented. Nor do patents generally have any real value beyond the software that implements them. The reality is that even at FRAND terms software patents are grossly overvalued.

So David "former IBM patent chief" Kappos is in favor of software patents, for our children's sake.

And yes, the "post-grant review procedure ... allows third parties to challenge the validity of a patent after it has been approved by the patent office" but it cost around 50k per patent just in USPTO fees

The biggest problem is that the patent system is systemic in disallowing innovation by smaller players. Imagine you have a new company come out and make a YouTube type service, but better than YouTube. Google will go after them for patent infringement and the litigation will basically stop their service entirely. Then they hire the engineers who were working on it and get all the benefits and no competition.

It's ridiculous that in order to compete in the world of technology you have to be working with an army of lawyers. The patent system was designed to bring about innovation and protect innovation, but not shoot it in the leg when somebody has "similar" technology to you. The patent system is broken, and anybody who sticks up for it really shouldn't be running it. It needs a reformer, not an apologist.

I'm genuinely curious here; is there any evidence that the kind of scenario you paint actually occurs? Show us these brilliant software innovations laying fallow due to fears or threats of legal action based on patents.

I'm NOT saying that the current system is perfect; far from it. But these kinds of empty "the sky is falling" arguments leave me wanting.

Yes, in fact... I don't just make it up. Here's just an example, I'm sure there are many more you won't even hear about because they are sued before they make anything of themselves.

I'm genuinely curious here; is there any evidence that the kind of scenario you paint actually occurs? Show us these brilliant software innovations laying fallow due to fears or threats of legal action based on patents.

"Show me the inventions that didn't happen because of the patent-system!"Yeeeeahh...

I have no doubt the current state of US patent-system, particularly in respect to software patents, is slowing progress. It doesn't entirely stifle innovation, there will always be companies willing to work around barriers, but it DOES mean that innovation is either much more expensive, or a much bigger gamble - you might spend a couple years developing a product or service, and shortly after launch, get stopped by suits.

This means that smaller companies are at a disproportionately higher risk when developing new technology, because they can't afford the lawyers to protect their ideas, and they can't afford to spend capital developing something they might not be able to profit from.That seems like an all-round bad thing for everyone, since many of the most innovative ideas come from startups that are willing to try something new and different.

I've heard instances where companies purposefully do not research other patents while developing new areas of technology, because if you did, the opposing party can claim you knew about the patent, and thus it was willful infringement. Now you lose all your hard work, AND get hit with punitive damages.

Lastly, I think it's funny that David Kappos is saying "Give it a rest already", because new measures should alleviate the problem. The system has been broken for YEARS, perhaps decades, but now they have a few measures, so why are you still complaining?

Show us these brilliant software innovations laying fallow due to fears or threats of legal action based on patents.

Uhm.. it's pretty difficult to make a statistic about things that never came to be.. what do you propose? Break into the homes of a sizable sample of potential inventors and look whether they have some blueprints hidden under their pillow?

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.